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The Nigerian government has continued to make progress toward new copyright legislation in recent weeks, but efforts appear to have become less transparent, as the results of a public comment period that ended weeks ago have not been made available and as of press time the draft copy of the bill was no longer available on the Copyright Commission website.

Consultation on the Nigerian Copyright Commission’s (NCC) Draft Copyright Bill 2015 ended on 5 January, but it’s unclear how many submissions there were because the Commission hasn’t yet posted them and its website has been unavailable for several days. The NCC didn’t respond to several requests about when the responses would be published.

The goal of copyright reform is to reposition Nigerian creative industries for greater growth, help them compete better in the global marketplace, and allow the country to fully satisfy its obligations under various international copyright instruments, the draft said. The country’s economy was widely reported to have overtaken that of South Africa’s in 2014.

The submissions were to be reviewed by an NCC technical working group that was expected to produce a final document to be submitted to the government for transmission to Parliament, NCC Regulatory Department Head Michael Akpan told Intellectual Property Watch in November (IPW, Copyright Policy, 22 November 2015). Akpan said then that he expected challenges to several of the draft’s provisions, but not from rights owners.

“Serious, Negative Implications”

“The current draft has some serious and even negative implications for Nigeria as a developing country,” University of Witwatersrand, Johannesburg Scholarly Communications Librarian Denise Nicholson told the NCC. Among other problems, the text proposes to extend the copyright term of protection from an author’s life plus 50 years to the author’s life plus 70 years. “This is not advisable for any developing countries as the extension just means a further period of paying royalties to developed countries as that is where most of the [intellectual property (IP)] works for education and research come from,” she wrote.

Nicholson also criticised the draft’s “fair dealing” exception clause (Sec. 20(1)(a). The provision is “very limited and doesn’t seem to apply to libraries or archives,” said Nicholson. A “Fair Use provision like the USA would be far more beneficial to all users of information, including authors, publishers, lawyers, educators, researchers, students and other users of information.”

American University Washington College of Law Professors Peter Jaszi and Michael Carroll and Professorial Lecturer in Residence Sean Flynn also urged the NCC to offer a US-style fair use provision. “Our central and most important suggestion is to encourage the NCC to open its proposed fair dealing clause in Sec. 20 to be applicable to any purpose…” they wrote. They argued for “open” copyright limitations and exceptions.

The draft recognises the benefits of “flexible” exceptions – those which apply to multiple purposes based on a generally applicable balancing test and which help the law adapt to the “next wave” of developments in culture, technology and commerce which often can’t be foreseen, the academics said. But the document limits fair dealing to research, teaching, education, private use, criticism, review or the reporting of current events, they wrote.

“Uses falling outside of this list cannot benefit from the flexible exception even if they are otherwise fair,” they said. They recommended that the NCC make the exception open to allow the flexible exception to be applied to purposes not expressly listed in the statute, along the lines of the US fair use clause. That would close a range of gaps in the provision’s coverage, they said.

“Worthy of Imitation Elsewhere”

Sec. 44(8) on limitations and exceptions relating to anti-circumvention won praise from the US academics. It “appears designed to address the potential conflict between copyright limitations and exceptions, on the one hand, and prohibitions against the circumvention of technological protection measures (TPMs), on the other,” they wrote. The provision recognises that without a clear exception, TPMs can and likely will frustrate the exercise of many exceptions to copyright control, they said. “More than 15 years of international experience with anti-circumvention legislation has demonstrated this problem, and the NCC has taken it into account,” leading to an “approach that is worthy of imitation elsewhere.”

Nichols, however, said the act should specifically include provisions to allow circumvention for legitimate library, educational and research purposes and for access for blind people and others with disabilities.

Libraries Seek Further Protections

The International Federation of Library Associations and Institutions (IFLA) worried about the potential impact of Sec. 21(2)(b) which reads: “If a work or a copy of such work, in such an institution’s collection, is incomplete, such an institution may make or procure a copy of the missing parts from another institution, unless the work can reasonably be acquired through general trade or from the publisher.”

Material in some publicly accessible libraries is often vandalised, and the phrase “unless the work can reasonably be acquired through general trade or from the publisher” could be interpreted to mean that libraries must re-purchase an entire book when only one page has been damaged, wrote Eve Woodberry, who chairs the IFLA copyright and other legal matters committee. She recommended replacing the phrase with one that permits copying when only an insubstantial part of the work is missing, without having to first buy a new copy through general trade.

Libraries also want a provision protecting them from liability for copyright infringement when they act in good faith within the scope of their duties, and a clause protecting exceptions applicable to libraries from being overridden by contracts.

The African Union of the Blind recommended that Nigeria and other nations that haven’t yet done so ratify that Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The NCC should also consider a resolution on accessibility for persons with disabilities approved by the African Commission on Human and Peoples’ Rights, AFUB said.

Google confirmed that it had made a submission but declined to share it, stating that it understood the Nigerian government is still in the process of reviewing the comments and would release them when ready.

[Update:] Attempts to reach two developed nation rightsholder groups for comment on the draft were unsuccessful.